I just finished reading John Inazu’s “Confident Pluralism,”
and will use the two-hour delay of my flight from New Orleans to write a couple
of posts about it. This one and the next deal with his critical account of
constitutional doctrine about the freedom of association (mainly) and freedom
of expression. A third will deal with his prescriptions for good civic behavior
– tolerance, humility, and patience – but I hope that my plane will take off
before I get around to drafting it.

One feature of Inazu’s criticisms of existing doctrine is
that it assumes that judicially enforced doctrine should directly embody the
first-order principles that he argues are the most constitutionally
appropriate. So, for example, he criticizes the Court for applying different
rules to expressive and non-expressive associations because, in his view, the
correct constitutional rule is one that balances the interests in association
(of whatever sort) against (compelling) government interests. Instead of saying
that an ordinary commercial enterprise cannot claim a right of association
against a government rule prescribing non-discrimination in the enterprise’s
operations, for example, the constitutional rule should be that such an
enterprise can claims such a right,
but that sometimes the regulation will be justified by a compelling interest in
promoting nondiscrimination.

I have some difficulties even with that formulation but I
put those aside to offer my own critique of Inazu’s approach. As numerous
scholars have shown, sometimes (often?), the rules the courts implement are not
direct embodiments of the best first-order interpretations of the Constitution.
Rather, they are second-order rules whose justification lies in the fact, or
hope, that a system implementing those rules will actually achieve better
compliance with the first-order norms than a system in which courts attempt to
enforce only the first-order norms.

The reason that imperfect second-order rules might perform
better than perfect first-order ones arises from the fact that no one – not even
the Supreme Court – can guarantee that the first-order norms will actually be
followed. Tell those charged with the “street level” implementation of the
right of association to ask themselves whether the impairment of the right of
association is justified by a compelling government interest, for example, and
lots of those implementers will get the answer wrong (from the point of view of
whoever is in charge of determining what the right first-order outcome is).
And, given the practical limitations on reviewing all the street-level
decisions, there will be lots of mistakes. But, tell the street-level
implementers that expressive associations have a constitutional right and non-expressive
ones don’t, and, the hope is, you’ll reduce the number of net errors – of course you’ll introduce some errors where the
non-expressive association happens to have expressive interests that do
outweigh the government’s regulatory interests, but you’ll eliminate the errors
that occur when street-level decision-makers determine that an expressive
association’s rights are unjustifiably impaired and are mistaken in their
assessment of the justification.

Obviously, there’s a lot of empirical stuff built into the
second-order argument, but a full critique of existing doctrine at least has to
face up to the argument on behalf of second-order implementing rules that
differ from first-order “best interpretations.”